CITATION: Byberg v. Diaz, 2015 ONSC 2934

COURT FILE NO.: CV-14-516929

DATE: 20150512

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Kendra Byberg

Appellant

– and –

Dr. Pablo Diaz

Respondent

J. Weiss, for the Appellant

K. Naidoo, for the Respondent

HEARD: April 13, 2015

S.A.Q. Akhtar J.

1The appellant asks this court to allow an appeal from the Consent and Capacity Board (“CCB”) finding her to be incapable of consenting to medical treatment. She asks for the decision to be quashed outright or, in the alternative, remitted back to a differently constituted CCB for a fresh hearing.

2For the reasons set out below, the appeal is dismissed.

FACTUAL BACKGROUND

3The appellant, a 41 year old woman, was diagnosed with schizophrenia in 2007. She was treated with anti-psychotic medication, discharged from hospital, and thereafter maintained a stable life in the community. In time, the appellant became unhappy with the prescribed medication and sought to discontinue its use. In order to accommodate these wishes, her psychiatrist, Dr. Soni, agreed to reduce the dosage of prescribed medication from 15 mg to 2.5 mg.

4The appellant began to act in an irregular manner. She began conversing with herself, arguing with others, and losing body weight. Her father, Kenneth Byberg, noticed these symptoms both at a family gathering in December 2013 and at a baseball game in April 2014. Mr. Byberg, out of concern for his daughter’s welfare, communicated his concerns to Dr. Soni. On June 16, 2014, Mr. Byberg spoke to the appellant by phone and described her as being fine. However, in July 2014, having had no contact with the appellant for a substantial period of time, Mr. Byberg filed a missing person’s report with the police. The appellant was discovered by police in Bowmanville and taken to Oshawa General Hospital. She was covered in feces and lice, was unaware of her own identity and claimed to have memory loss.

5The appellant’s identity was at that point unknown to the authorities and she was found incapable of consenting to treatment on July 14, 2014. Due to the lack of information about who she was, the appellant was placed in the care of the Public Guardian and Trustee. The appellant’s identity was discovered a month later and Dr. Soni advised the hospital of his previous diagnosis of schizophrenia. Consequently, the appellant was treated with olanzapine and began to show improvement. She was transferred to the Centre for Addiction and Mental Health (“CAMH”) in August 2014. Shortly afterwards, the respondent began treating her.

6The respondent concluded that the appellant’s condition had worsened due to the reduced dose of medication Dr. Soni had prescribed her. The respondent believed that the dosage level prescribed by Dr. Soni was insufficient to properly control her mental illness. The respondent also took the view that the appellant was unable to appreciate the reasonably foreseeable consequences of not taking medication and was therefore incapable of consenting to the required treatment. The basis for this belief was that the appellant denied any mental condition and did not believe anything would happen to her if she stopped taking her medication.

7On November 13, 2014, the appellant appeared before the CCB to challenge the respondent’s determination of incapacity. The CCB heard evidence from the respondent, the appellant, and her father.

The CCB Decision

8The CCB made the following findings on the basis of the evidence it heard:

• The appellant suffered from schizophrenia.

• The appellant understood the information relevant to making a decision about the treatment of her condition.

• The appellant did not believe that she suffered from either schizophrenia or any other mental condition.

• The deterioration in the appellant’s mental condition was a result of the dosage reduction agreed to by Dr. Soni.

• The appellant’s behaviour in the winter of 2013 and the spring of 2014 were symptomatic of schizophrenia.

• The appellant’s disappearance and her condition upon re-appearance resulted from a relapse in her mental condition.

• The appellant did not appreciate that decrease in her medication had caused her relapse and the failure to do so was a result of the mental illness itself.

• The appellant’s willingness to take any medication was grounded in financial incentives offered by her parents, rather than an understanding that it was necessary to treat her illness.

• The appellant did not appreciate the fact that medication had improved her symptoms and felt that the lack of symptoms was “because of me”.

9It is important to note that at the hearing, the appellant took the position that the deterioration in her condition was the result of a bout of amnesia. Thus, in effect, she denied the validity of the respondent’s diagnosis of schizophrenia.

THE LEGAL PRINCIPLES

The Statutory Provisions

10The Health Care Consent Act 1996, S.O. 1996, c. 2, Sch. A (“HCCA”) governs the CCB’s determination of incapacity through two separate sub-sections.

11Section 10(1) of the HCCA provides:

10(1) A health practitioner who proposes a treatment for a person shall not administer the treatment, and shall take reasonable steps to ensure that it is not administered, unless,

a) he or she is of the opinion that the person is capable with respect to the treatment, and the person has given consent; or,

b) he or she is of the opinion that the person is incapable with respect to the treatment, and the person’s substitute decision-maker has given consent on the person’s behalf in accordance with this Act.

12Capacity is defined in s. 4 of the HCCA as follows:

4. (1) A person is capable with respect to a treatment, admission to a care facility or a personal assistance service if the person is able to understand the information that is relevant to making a decision about the treatment, admission or personal assistance service, as the case may be, and able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.

The Starson Test

13The leading case on capacity to consent is the Supreme Court of Canada decision of Starson v. Swayze, 2003 SCC 32, [2003] 1 S.C.R. 722. At para. 79 of that decision, Major J., writing for the majority of the court, explained that:

First, a patient need not agree with the diagnosis of the attending physician in order to be able to apply the relevant information to his own circumstances. Psychiatry is not an exact science, and "capable but dissident interpretations of information" are to be expected: see Weisstub Report, supra, at p. 229. While a patient need not agree with a particular diagnosis, if it is demonstrated that he has a mental "condition", the patient must be able to recognize the possibility that he is affected by that condition. [Emphasis added.]

14In the same paragraph, Major J. added:

As a result, a patient is not required to describe his mental condition as an "illness", or to otherwise characterize the condition in negative terms. Nor is a patient required to agree with the attending physician's opinion regarding the cause of that condition. Nonetheless, if the patient's condition results in him being unable to recognize that he is affected by its manifestations, he will be unable to apply the relevant information to his circumstances, and unable to appreciate the consequences of his decision. [Emphasis added.]

15At para. 77, Major J. made clear that “[t]he Board must avoid the error of equating the presence of a mental disorder with incapacity” and that “[t]he presumption of capacity can be displaced only by evidence that a patient lacks the requisite elements of capacity provided by the Act.” As set out in s. 4 of the HCCA above, to be “capable” an individual must be able to both “understand the information that is relevant to making a decision about the treatment” and “appreciate the reasonably foreseeable consequences of a decision or lack of decision.”

16In applying the test for capacity, the Ontario Court of Appeal emphasized the need for corroboration of the respondent’s opinion: Anten v. Bhalerao, 2013 ONCA 499, 366 D.L.R. (4th) 370. The significance of corroboration follows from s. 14 of the Evidence Act, R.S.O. 1990, c. E. 23, which provides that any finding of incapacity shall not be obtained “unless the evidence is corroborated by some other material evidence.”

The Standard for Review

17In Starson, both the majority and the dissent agreed that the standard of review for CCB decisions was that of correctness in the interpretation of the law, and reasonableness with respect to its application of the law to the facts before it. At para. 5, McLachlin C.J., dissenting but not on this point, held that “the Board’s conclusion must be upheld provided it was among the range of conclusions that could reasonably have been reached on the law and evidence.” The Chief Justice added, “the fact that the reviewing court would have come to a different conclusion does not suffice to set aside the Board's conclusion.” See also Gajewski v. Wilkie, 2014 ONCA 897, 123 O.R. (3d) 481 at para. 33, Starson, para. 84.

18In New Brunswick (Board of Management) v. Dunsmuir, 2008 SCC 9 at para. 55, [2008] 1 S.C.R. 190, Bastarache and Lebel JJ., writing for the majority of the Court, made clear that deference is owed to the decision makers at the tribunal level, particularly those that make up a tribunal of specialized experts. See also: Canada (Director of Investigation & Research) v. Southam Inc., 1997 CanLII 385 (SCC), [1997] 1 S.C.R. 748. At para. 47, Bastarache and Lebel JJ. reviewed the concept of reasonableness and defined it as a “deferential standard” which afforded administrative tribunals “a margin of appreciation within the range of acceptable and rational solutions.” The inquiry on review is into whether “the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law.” A decision falling within the aforementioned range is a reasonable decision.

THE GROUNDS OF APPEAL

19Much of the factual issues are agreed upon appeal. It is not disputed that the appellant suffers from a mental illness or that the treatment administered to the appellant had a significant beneficial effect when taken.

20Instead, the focus of this appeal centres upon the appellant’s ability to understand her condition and its manifestations. The appellant argues that the CCB misapprehended the evidence at her hearing and erroneously concluded that she denied suffering from schizophrenia at the November 13, 2014 hearing. She further argues that the CCB misapplied the Starson test by requiring her to agree with the respondent’s diagnosis as a pre-condition of capacity.

21The CCB was provided with a substantial amount of evidence with respect to the appellant’s inability to appreciate the consequences of a decision or lack thereof regarding treatment. The respondent testified to the appellant’s condition of schizophrenia. The appellant’s father gave evidence with respect to the appellant’s condition before and after the change in dosage of the medication prescribed to her. His evidence was corroborative of the respondent’s determination of schizophrenia. The CCB had a full opportunity to see and hear from the appellant, whose account of events was directly contradicted by her father in significant areas.

22The appellant also suggests that the CCB placed undue weight of the evidence provided by her father. I do not agree. The CCB was in the best position to observe and evaluate the significance of the evidence put before it. The advantage of the CCB over a reviewing court in this respect has long been recognized: see e.g. Snoek v. Darby, [2008] O.J. No. 2232, 171 A.C.W.S. (3d) 248. As such, this court, on review, is required to give deference to its findings: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190. Accordingly, I reject the argument that the CCB made its decision in the “absence of strong and unequivocal” evidence.

23I also disagree with the appellant’s claim that the CCB failed to consider the possibility that she was not schizophrenic. As noted above, there was significant corroboration of the appellant’s condition before the CCB. The appellant relies upon a conversation between the respondent and Dr. Soni in which the latter explained his decision to reduce the medication because “he had his own opinion about possible other diagnoses”. I do not take that evidence as rejecting the condition of schizophrenia, so much an expression of Dr. Soni’s desire to explore other potential causes of the appellant’s behaviour. It is significant that sometime before the appellant’s transfer to CAMH in August 2014, Dr. Soni explicitly found the appellant to be suffering from schizophrenia.¹ As noted, there was more than sufficient evidence to corroborate the respondent’s diagnosis.

24I conclude that the evidence was more than sufficient for the CCB to find the appellant, (a) suffered from schizophrenia; (b) benefitted greatly from taking the proposed medication, and (c) because of her unwillingness to recognize her illness as schizophrenia would not be able to appreciate the consequences of making a decision on taking the medication required to treat it.

25The appellant also argues that the CCB erred by ignoring evidence that disclosed that she was “open” to the fact that she suffered from a mental illness and equally “open” to the possibility that medication would prove to be of assistance to her. She submits that that evidence was enough to demonstrate an ability to appreciate the consequences of making a decision regarding treatment.

26This argument cannot succeed. A plain reading of the transcript demonstrates the appellant’s explicit denial of her condition. For example, when questioned by her counsel on her thoughts of the diagnosis of schizophrenia as it applied to her, she responded:

A. Well, I don’t truly believe that I have it to be quite honest, but I’ve always felt that way. And when they first gave me the diagnosis I didn’t believe that I had it then either, but I took, I continue to take the medication for seven years so if it helps then I’m willing to stay on the medication.

Q. Okay.

A. This particular time I’ve been in the hospital though I haven’t had any thoughts of paranoia or hallucinations; visual or auditory. So this is why I, my feeling is that it’s possible that this wasn’t actually an episode, it was something else.

Q. And by “episode” you mean not an episode of schizophrenia?

27Later on, when it was put to her by the CCB that what had happened to her prior to her admission to CAMH was a recurrence of schizophrenia resulting from the reduced medication, the appellant replied, “No, I don’t think it was.”

28It was clear that the appellant not only denied her condition but also its manifestations. She claimed, on more than one occasion, that during the period that she was taking the lower dosage of medication she was “doing really well, everything was good.” This was clearly contradicted by the evidence of the appellant’s father, who reported the psychotic symptoms that the appellant was demonstrating prior to her admission to hospital in July 2014. Again, the appellant explained her disappearance and the subsequent evidence as being the consequence of simple amnesia.

29Whilst I agree that the appellant was not required to agree with the respondent’s diagnosis (see Starson at para.79), she must recognize that she is at least affected by the manifestations of her condition. Failure to recognize would mean that she is unable to apply the relevant information to her circumstances and thus unable to appreciate the consequences of any decision-making that would necessarily follow. The CCB’s conclusion that the appellant was incapable of consenting to treatment was founded on her inability to accept the fact that her mental condition was responsible for the events leading up to her incarceration.

30In this respect, the appellant’s situation is very similar to that of the patient in D’Almeida v. Barron, 2010 ONCA 564, 103 O.R. (3d) 250, where Rosenberg J.A. observed at para. 26:

[The patient] has no appreciation of the positive effects of treatment or the negative effects of the failure to treat. To the contrary, as set out above, he believes that his progress is solely the result of his own efforts and that the treatment has retarded his progress. That is manifestly not the case. Moreover, his failure to appreciate is directly related to his mental condition. Because of his false ideas, he does not appreciate that he is ill and does not appreciate that he needs medication. He attributes his hospitalization, not to his illness, but to the fact that evil forces are conspiring to keep him from assuming his proper role in this country.

31For the above reasons, I find that the CCB’s decision fell within the range of reasonable conclusions. The appeal is therefore dismissed.

S.A.Q. Akhtar J.

Footnotes

1. 1CCB Summary prepared by the respondent dated November 17, 2014.